GENERAL ONLINE SALES CONDITIONS FOR BUSINESS TO BUSINESS RELATIONS (BtoB)
The present General Online Sales Conditions rule the Business to Business (BtoB) sales contracts of the products presented on the www.freespiritsparts.com site, owned by Mr. Fontana Marcellino, with headquarters in Italy, Thiene (VI) via Pecori Girardi and with operational headquarters in Italy, Carrè (VI) via G. Marconi 79, VAT IT03285260240, registered in the Registry of Businesses REA n. 313422, which are carried out through the Internet.
The present General Online Sales Conditions are ruled by the Electronic Business laws (Legislative Decree n. 70/2003), and by the Italian law, and exclusively apply to the Internet Sale and the purchaser must be a professional as defined in art. 1 lett. b) below.
Free Spirits srl is available to give any explanation, even on the phone, concerning the content of the present General Online Sales Conditions to the Purchasers as defined below.
IT IS AGREED AS FOLLOWS
For the purposes of this General Online Sales Conditions, the following expressions shall bear the respective meaning set forth below.
a) Seller. “Seller”,, Free Spirits srl;
b) Purchaser. “Purchaser” meansany natural or legal person who is acting as a mechanical workshop authorized by law in the country in which it operates and performs the installation of the Products on motorcycles.
c) General Online Sales Conditions. “General Online Sales Conditions” means the sales contract stipulated by the Seller and the Purchaser through the use of the www.freespirits.it, which is ruled by the Distance Sales Contracts.
d) Contract or Sales Contract. “Contract or Sales Contract” means the present General Online Sales Conditions;
e) Website or Site. “Website” or “Site” means the www.freespiritsparts.com website, owned by the Seller, in which the Purchaser may purchase online;
f) “Order. “Order” means the invitation to offer by the Purchaser relating to one or more Products, through the use of the order procedure indicated in the www.freespiritsparts.com website and in article 7 of the present Contract;
g) Product or Products. “Product or Products” means the goods described in the Website that may be purchased online by the Purchaser;
h) Party/Parties. “Party/Parties” means the Purchaser and/or the Seller;
i) Consumer. “Consumer” means a natural person who doesn’t act for business, handcrafted, or professional purposes, and who purchases the Product from the Seller, by requiring the installation of the product into motorcycles.
2.1 Online Sales. The present General Online Sales Conditions apply to all the Orders made by the Purchaser, as defined above in art. 1 lett. b), for the purchase of the Products through the use of the www.freespiritsparts.com Website.
2.2 Invitation to offer. The presentation of products on the Web Site constitutes an invitation to offer. The order of the Purchaser is treated as a purchase contract proposal addressed to the Seller for the listed products, each considered individually. Upon receipt of the order, the Seller, will automatically send a message to the Purchaser confirming that the order has been taken charged of (“Order Confirmation”). The order confirmation does not constitute acceptance of the offer to purchase for the Purchaser. By sending the order confirmation, the Seller, only confirms to have received the order and to have started checking data and availability of the Products being requested. The sale Contract with the Seller will be executed only when the Seller will send a separate e-mail with the express acceptance of the Purchase offer which will include information regarding the shipment of the Product and the date of delivery (“Shipping Confirmation”). In the event that the order is processed through several shipments, the Purchaser may receive separate Shipping Confirmations. The Purchaser may cancel the order before receiving the Shipping Confirmation.
The General Online Sales Conditions exclusively apply to the purchases made on the Website. The Products purchased on the Website are directly sold to the Seller, as defined above in art. 1 lett. a).
2.3. Purchaser: mechanical workshop. The Purchaser under Art. 1 letter b) is any natural or legal person acting as owner of a workshop authorized under the law of the place in which it operates (for Italy the Law 5 February 1992, n. 122) to install the Products into the motorcycles. The Seller shall not entitle the Purchaser to transfer for whatever reason the Products without installing them into motorcycles. The Purchaser undertakes to sell the Products exclusively through their installation performed by following exactly the installation instructions delivered with the Products inside the packaging material. Furthermore, the Purchaser shall not modify the Products, unless he is given consent in writing by the Seller.
3.1 Preamble. The preamble above forms an integral part of the present Contract.
3.2 Content. The present Contract replaces any agreement previously made between the Parties on the matter which is subject of the Contract.
3.3 Modifications. In case of variation of the General Online Sales Conditions, the General Online Sales Conditions published on the Website at the time the Purchaser sent the Order shall apply to the purchase Order
4. Survival of Rights and Obligations
This Contract shall be binding and be enforceable by the Party, its successors and assigns.
5. Information and modifications of the Products
5.1. Description of Products. For each Product, it is possible to visualize an information sheet with the picture and the features of the Product. The pictures and the colours of the products offered on sale on the Site may not correspond to the real ones because of the Internet browser and/or the monitor used. The Seller is not liable for eventual imprecision due to a particular configuration of the computer or of a malfunction.
5.3. Modification of the Products. The Seller may eliminate and/or replace the Products described on the Site at anytime and without notice and may make technical and aesthetic improvements which aren’t substantial or don’t worsen the quality of the Product.
6.1. Price of the Product. The prices of the Products inserted on the information sheets are written in Euro and do not include IVA (IVA=VAT “Value Added Tax”), if not otherwise indicated.
6.2 Shipping and payment expenses. The prices of the Products indicated in the information sheets don’t include the shipping expenses and those related to the chosen payment condition, which are determined and calculated according to the place of delivery and the payment condition chosen at the time of the Order, which the Purchaser reads before sending the Order. The shipping expenses of the Products and the expenses related to the payment condition are entirely on the Purchaser’s account.
6.3. Modifications of the Price of the Product. The prices of the Products published on the Site may be updated and therefore may be modified. The Purchaser shall purchase the Products at the price published on the Site at the time of the sending of the Order.
6.4. Modification of the Prices and of the shipping expenses according to the country of delivery. The price of the Products and the shipping expenses may be modified depending on the Country of delivery of the Products because of different existing customs duty, taxes and related costs, and of the different transport costs.
6.5. Special Offers. The Seller has the right to give different special offers depending on the country of delivery of the Products.
7. Order of the Product.
7.1. Registration on the Site In order to purchase one or more Products, the Purchaser shall register himself on the www.freespiritsparts.com Site beforehand and supply all the necessary personal data to the Seller so he may carry out the order. The personal data shall be processed according to the Legislative Decree 196/2003 (Personal Data Protection Code). The Seller may require a business profile or other equivalent document, in order to determine the exact identity of the Purchaser. Once the Seller has received the personal data from the Purchaser, he shall immediately send an e-mail to the Purchaser which shall indicate the authentication procedure, to allow him the access to the Site where he may purchase online, which will include the account and the password chosen by the Purchaser (the password will not be revealed to the Seller).
7.2 Order Procedure. The purchase orders shall be made exclusively online through the order procedure, present on the Site exclusively by Purchasers as indicated in art. 1 letter b) acting for purposes relating to their business activities, and by owners of a mechanical workshop who possess the requirements stated in Art. 2.3.. After accessing the “online shop” page, the Purchaser may select the Products to purchase, by inserting them in the “virtual cart”, whose content the Purchaser may always see before proceeding to the sending of the Order. During the Order Procedure until the sending of the Order, the Purchaser may modify the inserted data.
7.3 Acceptance of the General Online Sales Conditions. When the Purchaser sends the Order, he declares to have read and to accept the General Online Sales Conditions indicated on the Site and declares to have read all the indications given during the purchase procedure.
7.4 Order Confirmation. Once the Seller has received the Order, he shall send an automatic reply message on the e-mail account given by the Purchaser, which contains the confirmation of the reception of the Order. The Order Confirmation will summarize the Products chosen by the Purchaser, the related prices (including the delivery costs and the ones related to the chosen payment conditions), the Order number and the General Online Sales Conditions.
7.5 Formation of the Contract. The Contract shall be considered formed only when the Seller will send the Purchaser a separate e-mail with express acceptance of the purchase offer which will also include information related to the shipment of the Product and to the date scheduled for delivery (“Shipping Confirmation”). In the event that the order is processed through several shipments, the Purchaser may receive separate Shipping Confirmations. The Purchaser may cancel the order before receiving the Shipping Confirmation.
7.6 Checking of the data. The Purchaser undertakes to check the data inserted in the Order Confirmation is correct and to notify the Seller of any eventual mistakes by e-mail within 24 (twenty-four) hours of the reception of the Order Confirmation. Any eventual added costs caused by mistakes in the data which aren’t communicated within the time limit indicated above, shall be on the Purchaser’s account.
7.7 Unavailability of the Products. The Seller doesn’t guarantee the full availability of the Products inserted in the information sheets on the Site. If the Products aren’t available, the Seller shall communicate it to the Purchaser by e-mail. In case there isn’t any delivery of the ordered Products, the Purchaser has the right to get back the whole paid amount.
7.8 Personal Data of the Purchaser and Order number. The Purchaser undertakes to communicate his own personal data and not the personal data of a third person and to communicate real personal data, not fictitious or invented. In each communication following the Order, the Purchaser shall use the Order number given by the Seller.
7.9. Checking the orders. The Purchaser may check his own orders on the Site, in the “Order History” area.
8. Payment Conditions, invoices, and retention title
8.1. Payment conditions. The Italian or foreign Purchaser who purchases the Products may pay by using one of the following payment conditions: credit card, banker’s swift transfer or cash on delivery (the latter only for Italian Purchaser with delivery of the Products in Italy).
8.2. Payment by credit card. The payment by credit card shall be made according to the information indicated on the Site and the credit cards accepted by the Seller are: Visa and MasterCard.
The Purchaser, by choosing the credit card as payment conditions, authorizes the Seller to use his own credit card and to charge on it, the same amount as the purchase made. The Seller reserves the faculty to request a copy of the identity card of the owner’s credit card.
8.3 Time of payment. After placing of the Order, the Purchaser shall pay the whole price of the ordered Products, and the transport costs and the costs related to the chosen payment conditions, unless the payment is made at the time of the delivery (cash on delivery). If paying by bank transfer, the Purchaser shall pay within 2 (two) working days from the "Shipping Confirmation receipt” which shall bear the bank details on which to make the payment. In the case of non-payment, the Seller shall not make the shipment of the products until full payment of the same.
If paying by credit card, the Seller will debit the amount due by the date of shipment of the Products.
In case of late payment default interest shall be due by the Purchaser pursuant to Legislative Decree no. 231/2002 and its subsequent amendments.
8.4 Invoices. The Seller shall send the invoices which shall be attached to the delivered Products and/or sent by e-mail to the e-mail address communicated by the Purchaser through the Shipping Confirmation. No modification of the fiscal documents shall be made after they have been issued. Invoices will be available in PDF format in the section "my account" of the Site.
8.5 Retention title. It is agreed that, the Products delivered remain the Seller’s property until complete payment is received by the Seller, including the shipping and the chosen payment method expenses. The Purchaser undertakes to refrain from engaging in conduct or acts such as to prevent the exercise of the reservation of title by the Seller. In the event that the Purchaser prevents the exercise of a reservation of title by the Seller, the Seller will be entitled to revoke with immediate effect all orders accepted and not yet performed with the shipment of Products.
9. Delivery of the Products.
9.1. Conditions and terms for the shipping. The shipping of the Products shall be done according to the conditions chosen by the Seller, within 1 (one) working days following the reception of the Payment. In the event that the Purchaser has chosen to pay through cash on delivery, shipping arrangements will be made after the sending by the Seller of the Shipping Confirmation.
9.2 Failed Picking up of Products. If the Purchaser isn’t present at the agreed address for the delivery of the Products or in case the package isn’t picked up at the forwarder’s deposit, the Purchaser shall pay the price of the ordered products anyways and any storage costs will be charged to the Purchaser. The Purchaser authorizes the Seller to charge the storage costs incurred for late delivery of the Products due to the Purchaser, by charging the amount due by credit card, if the payment was granted by credit card. If the Purchaser, has chosen the bank transfer as payment method, he agrees to pay the Seller the costs of storage of the Products within two (2) working days from the payment request sent by email from the Seller to the Purchaser.
9.3 Risk of loss or damage to Products. The risk of loss or damage to Products during the shipping shall be on the Seller’s account until the delivery to the Purchaser. The Products are sold with DAP (Delivered At Place) Incoterms ® 2010, and therefore if there is exportation, the Seller has no obligation to clear the goods for import, pay any import duty or carry out any import customs formalities, and the Purchaser shall pay the value added tax (VAT) applicable in its country.
9.4 Failed or delayed delivery. The Seller shall not be liable for the failed or delayed delivery of the Products in the following cases:
a) if the supplier of the Seller has not delivered the goods for the manufacturing of the Products in the agreed terms;
b) if the Seller is not able to obtain the unavailable Products for reasons which do not depend on him.
In any case, the Seller shall immediately notify the Purchaser that the products are unavailable.
9.5 Failed or delayed delivery due to Force Majeure. The Seller shall have the right to suspend performance of his contractual obligations when such performance becomes impossible or unduly burdensome because of unforeseeable events beyond his control, such as strikes, boycotts, lock-outs, fires, war (either declared or not), civil war, riots, revolutions, requisitions, embargo, energy black-out, flood, earthquake, delay of components or raw materials.
The Seller wishing to make use of the present clause must promptly communicate in writing to the other Purchaser the occurrence and the end of such force majeure circumstances.
Should the suspension due to force majeure last more than 30 (thirty) days, the Purchaser shall have the right to terminate the Contract.
If there is termination of the Contract because of Force Majeure, the Purchaser shall not have the right to any compensation for any reason. The Purchaser shall have the right to the reimbursement of the paid amount for the Product.
10. Warranty Right of redress.
10.1. Expiry and forfeiture. When the Purchaser finds defects in the Products, he may contact the Seller, with forfeiture within 8 (eight) days of the discovery, and report the conformity defect. The legal warranty is valid for a period of 1 (one) year from the delivery date of the flawed Product. After such a period, the Seller shall not be liable for any conformity defects found by the Purchaser. In case of obvious defects, the Purchaser shall report defects within 10 (ten) days from the delivery date, and the transport costs and any other expenses for the return of the Products will be charged to the Purchaser.
10.2 Communication of the conformity defect. The Seller invites the Purchaser to describe in the most detailed way possible the nature of the defect found and eventually to send a copy of the Order documents, to indicate the number of the Order, and any other data which is useful for the correct identification of the claim.
10.3 Repair and replacement. The Seller, depending of the situation, shall do the repairs and make the requested replacements within a congruous period of time from the time of examination of the defect. If the Product is replaced or repaired, the warranty terms (expiry and forfeiture) start from the delivery date of the repaired or replaced Products.
10.4 Return of the Products because of conformity defects. If the warranty provides for the return of the Product to the Seller, the Product shall be returned by the Purchaser to the Seller with the complete original packaging (including the attached documentation and eventual accessory material), within 10 (ten) days from the notification of the defects.
10.5 Guarantee waiver. The Products will not be subject to warranty for defects in the event that the Purchaser or the Consumer has made improper use of the Products, or if the Products have been altered or modified without the written consent of the Seller, if they have been kept in an unsuitable way considering the nature and features of the Products, or if they have been installed incorrectly or without complying with the installation instructions.
10.6 Withdrawal of defective products. The Purchaser undertakes to support the Seller in the withdrawal from the market of defective products, if expressly requested by the Seller.
10.7 Products not installed by the customer. The Seller does not warrant the Products not installed by the Consumer when performing his activities as mechanic.
11. Responsibility for installation, Liability on Product and for damages
11.1 Responsibility for installation. The Products may not be consistent with the Italian Highway Code or with the Highway Code of the country of destination of the Products. The Purchaser therefore assumes full responsibility for the installation of the Products into motorcycles circulating on roads open to traffic.
11.2 Liability on Product. The Seller, to the extent permitted by law, disclaims any liability in the event that the delivered product does not comply with the legislation of the country of delivery other than Italy.
11.3 Liability for damages. The Seller is only liable for direct damage foreseeable upon formation of the Contract, except in cases of wilful misconduct and gross negligence. The Seller is not responsible for any losses, lost profits or any other damage suffered by the Purchaser that are not immediate and direct consequence of his failure, or that they were not predictable at the time of formation of the Sales Contract.
12. Protection of intellectual property rights.
12.1 Website. The content of the website, including but not limited to texts, photos, trademarks, pictures, description of Products, is owned and managed by the Seller and it is forbidden to copy, reproduce, or use it in any way, without the Seller’s written authorization.
12.2 Printing the material contained in the Website. The Purchaser may print the material contained on the Website only with the written authorization of the Seller.
13. Early termination
11.1 Resolution with immediate effect. Each Party may terminate this contract with immediate effect, by a written notice sent by means of communication ensuring evidence and date of receipt, in case of a breach of contractual obligations by the other party, amounting to a justifiable reason for immediate contract termination or in case of occurrence of exceptional circumstances which justify the earlier termination, as set forth below.
11.2 Circumstances of fundamental breach. The parties jointly agree that the breach of the provisions under articles 2.3, 8.3, 8.5, 9.2, 9.5 is to be considered in any case, whatever the importance of the violation, as a justifiable reason for immediate contract termination. Furthermore, the breach of any other contractual obligation, which is not remedied by the breaching party within 15 days after having been invited in writing to do so by the order party, shall be considered as a justifiable reason for the immediate contract termination.
13.3 Circumstances justifying earlier termination. Shall be considered as exceptional circumstances justifying the immediate contract termination: bankruptcy, any kind of composition between the bankrupt and the creditors, any important changes in the juridical structure or in the management of the parties as well as any circumstances which may affect the punctual carrying out of the obligations set forth in the Agreement.
14 . Severability.
14.1 The invalidity of a clause. Should any clause be considered invalid or unenforceable by the judgement of a Court of competent jurisdiction or award of an Arbitral Tribunal, all other provisions shall remain in full force and effect.
14.2. Replacement of the invalid clause. The Parties agree, however, to replace, when possible, any provision declared invalid by a provision which shall reflect their initial intent, as objectively and consistently as possible and in accordance with the basic relationship existing between the Parties.
15. No Waiver
The non-enforcement of any provision contained in this Agreement shall not be construed by either party as a waiver of the right to enforce the provision at another time under different circumstances and/or enforce other provisions of this Agreement.
16. Communication. Language of the Contract.
16.1. Written form. The communications expected in the present contract shall be done in written form in English and sent by the Purchaser to the following address to the Seller:
Free Spirits srl
Thiene (VI) via Pecori Girardi n. 5
Tel: 0039 0445 390 437
Fax: 0039 0445 395 539
e-mail: [email protected]
16.2 Language. The present Contract, written in English may be translated by the Purchaser into another language. If there is a conflict between the terms, the English term shall prevail.
17. Applicable law and jurisdiction.
The present General Online Sales Conditions are ruled by the Italian law.
18. Mediation and Arbitration
18.1 Mediation. Any dispute between the Parties relating to or arising from this Contract shall be submitted to a procedure of mediation conducted by a sole mediator, appointed and proceeding in accordance with the Mediation Rules of this body by the local branch – if any – of the Mediation Centre for Europe, the Mediterranean and the Middle East having its seat in Strasbourg, which Rules are in force at the date of filing of the application for mediation.
18.2 Arbitration. In the event of the mediation proceedings not taking place or being unsuccessful, any dispute arising from said relationships between the Parties shall be determined in accordance with the Arbitration Rules and the Internal Rules of the European Court of Arbitration – being part of the European Centre of Arbitration having its seat at Strasbourg (in force at the time the application for arbitration is filed), with right to appeal – unless forbidden by the applicable procedural law – including for wrong choice of the substantive law and or for errors of substantive law and errors of fact, by way of rehearing by an appellate arbitral tribunal (if so allowed by the applicable procedural law), of which adoption of this clause constitutes acceptance. The arbitration proceedings shall be conducted according to the provisions of the said Rules by a sole (1) arbitrator who shall be appointed, by the Central Registrar of Strasburg.
18.3 Confidentiality. The Parties undertake to keep, and to cause their Counsel, advisors, managers, employees and agents to keep strictly confidential the dispute, the facts, the documents, the evidence and the award.
18.4 Duration of the proceedings. The Parties agree to conduct and to cause their Counsel to conduct themselves in a manner which limits the duration of the proceedings to six months, and to avoid the production of documents and the calling of witnesses who are unnecessary or irrelevant, restraining motion practices, avoiding delays, vexatious or repetitive conduct and in general any over lawyering and accepting to pay to the other parties all legal costs caused by a breach of such commitment, even in cause of final success in the dispute.
18.5 Reimbursement and interim award. Each Party further undertakes to promptly reimburse the other Parties which should pay its share of any advance requested by the European Court of Arbitration or by its local competent Chapter – if any – for the proceedings and to recognise that the other Parties shall be entitled to an ex parte summary judgment, or other summary proceedings, against it for such repayment. The Parties request the arbitrator to issue as soon as possible an interim award for the part of a claim or cross claim which is undisputed or manifestly grounded.
18.6 Place and languages: The place of the proceedings shall be Vicenza. The language of the proceedings shall be English.